Even if alleged video of Rob Ford smoking crack surfaces, the city can't force the mayor to resign

Rob Ford crack video: City can't force Toronto mayor to resign

Now that a holiday weekend has passed with barely a word from the mayor of Canada’s largest city on allegations that he has been caught on video smoking crack, Toronto’s political future seems eerily uncertain. Something has to give, but in this moment of uncertainty, it is not clear whether that will be a libel suit, a fulsome denial, an explanation, a police investigation, a council vote, or a crowd-sourced fundraising effort to buy the alleged video and make it public. The National Post’s Joseph Brean sketches the possibilities.

Q If the video ever comes out, and it is as described, could Rob Ford be criminally charged with possession of crack cocaine?A Theoretically yes, practically no, according to experts. Neil Boyd, professor of criminology at Simon Fraser University, said a criminal conviction is “possible, but highly unlikely.”

“If the video is genuine, and proven to be part of a sequence of related events, a criminal conviction could be possible, but this sequence would need to include proof that the pipe Rob Ford was using contained crack — and that he had knowledge of the substance as well as control over his use of it,” he said.

That might require testimony from an eyewitness which, given that this person is reportedly a crack dealer, raises credibility problems.

Alan Young, professor at Osgoode Hall Law School, said these problems of proof would likely sink any criminal case against Mr. Ford for possession. In fact, Prof. Young said he has never seen a case of someone convicted based on video of their activities. That kind of evidence tends to arise in conspiracy cases, he said, where it helps the Crown’s effort to prove an accused associated with certain people, not the contents of a pipe.

“Right at the outset, the police don’t even have a case if they have the videotape. They would have to do a fair amount of forensic investigation to determine its authenticity, how much it’s been edited,” he said. “So you’re talking about minor criminality and this is not the type of case police would tend to put a lot of resources in.”

Even if the pipe could be located and analyzed for crack residue, Prof. Young said many judges would apply the rule of “De minimis,” or trifling value, and consider remnants in a pipe to evidence of past possession, not current possession. “It’s kind of an open issue, and depends on the luck of the draw,” he said.

“We do turn a blind eye to a lot of simple possession cases,” Prof. Young said.

Serious accusations have been made against the mayor of Toronto. If they are proven to be true beyond a reasonable doubt, he should resign.

Q Could the mayor be impeached? How about a vote of non-confidence by city council?A Toronto Councillor Josh Matlow tweeted this weekend: “Serious accusations have been made against the mayor of Toronto. If they are proven to be true beyond a reasonable doubt, he should resign.”

Regardless whether he should or not, the choice is likely to be Mr. Ford’s alone. A mayor of Toronto may resign, but it is hard, verging on impossible, to push one out. Municipal politics is not the same as the party-based parliamentary systems in Ottawa or the provincial capitals. So a vote of non-confidence is meaningless for a mayor. Also, there is no recall measure in Toronto’s municipal politics. Councillors could theoretically vote as a bloc against the mayor, leaving him powerless to enact his agenda. But he would still be mayor.

Q How about the voters? If the tape surfaces and enough people want to oust him before the next election, can they?A Not a chance. Mr. Ford has been the target of an online petition before (5,477 votes to get rid of him), as was his predecessor David Miller. But these are of no force, and mayoral elections are more or less final, until the next one. Failed Toronto mayoral candidate Rocco Rossi proposed provincial legislation that would allow voters to recall elected politicians, as British Columbians can, but then he earned 1.3% of the votes Rob Ford did.

Q Could Mr. Ford’s family convince him to break his silence?A As the most famous face of a political dynasty, founded by his father Doug, an Ontario MPP, Mr. Ford’s response to this crisis is likely to affect more political futures than just his own. His older brother Doug, an influential Toronto councillor with an eye on provincial Conservative politics, came to his brother’s defense on a weekend radio show, saying: “I have never seen my brother involved with anything like coke.” Facing a possible decline in the family’s influence, however, he might have had more to say in private.

Q Could he sue for libel? The U.S. website Gawker — which broke the story — has made declarations that appear downright reckless compared to the cautiously phrased news reports in Canada. Which would be the more likely target?A Suing is risky, perhaps more so in the United States than Canada, as the jurisprudence on libelling public figures is different. In Canada, truth is an absolute defense to libel, so if an accused media can demonstrate the truth of its reporting, it is off the hook. There is also a new standard, recently set by the Supreme Court of Canada, known as responsible communication on matters of public interest, according to which even false allegations can be saved from libel claims, if they were fairly reported with opportunities for rebuttal or denial. But in the United States, ever since a civil rights era case between the New York Times and a Southern police chief, the burden of proof has shifted from the defendant to the public figure, who must prove the falsehood of the allegations. That case enshrined the principle that a public figure must prove the alleged defamation was done with “actual malice,” which means either knowledge it was false or reckless disregard for the possibility. In a nation that made free speech its first constitutional amendment, that is a high bar.

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